3 Ways to Avoid ADA Discrimination Issues During the Hiring Process

Photo by istockphoto.com
Photo by istockphoto.com

By Eric B. Meyer

Stop me if you’ve heard this one before:

  • Job candidate is told that any job offer is contingent upon passing a drug test.
  • On D-Day, job candidate bolts from the drug-testing facility, claiming that he has trouble in confined spaces.
  • No drug test means that job candidate is disqualified from the position.
  • Job candidate sues claiming a violation of the Americans with Disabilities Act for failure to accommodate.

Folks, I couldn’t make this stuff up if I tried. Just another day in the life of an employment lawyer.

How ADA defines a disability

The case is Gesegnet v. J.B. Hunt Transp. Inc.

Under the Americans with Disabilities Amendments Act, which took effect on January 1, 2009, a person will be considered disabled if he has a physical or mental impairment that substantially limits one or more major life activities. A major activity is as broad as it sounds and could be anything from performing manual tasks, to speaking, or even breathing, just to name a few examples. (Here are some others.)

The plaintiff here claimed that he suffered from diagnosed mental impairments that caused him to have trouble in confined spaces.

Well, even though the ADAAA’s definition of “disability” is broad, just because the plaintiff says he’s disabled doesn’t mean he is. Here, the plaintiff introduced no medical evidence to support his disability claim. And the court refused to “simply assume that a disease or diagnosis has disabling consequences.”

But there are other ways to establish a disability. One is to offer personal testimony. Here, in a last-minute personal affidavit, the plaintiff was able to convince the court that he was disabled — although the court doubted that there was enough evidence to show an actual inability to perform a basic function of life.

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The plaintiff still loses because the company did not know about the disability

It is — legal jargon alert!! legal jargon alert!! — axiomatic that an employer cannot discriminate against a disabled person if it does not know that the person is disabled. Here, the court found that the defendant did not know, before the company ultimately decided to remove the plaintiff from job consideration, that he was disabled.

What can an employer do?

The plaintiff never informed the defendant of the limitations that result from his disability. Had the plaintiff informed the defendant about his disability and requested an accommodation prior to when the company took adverse action against him, he may have gotten his day in court.

So what is an employer to do when someone, without a glaring disability, interviews for an open position?

Here are three tips:

  1. Don’t make it an issue and avoid asking disability-related questions before making a job offer.
  2. If an applicant reveals a disability during the interview, don’t focus on it. Stick with the interview script and concentrate on the qualities that would make the candidate either a good or bad for the company. (Of course, if the individual requests a reasonable accommodation that would allow him/her to complete the interview, provide it).
  3. Inform applicants ahead of time if they will be required to take a test to demonstrate their ability to perform actual or simulated tasks so that they can request a reasonable accommodation, such as a different format for a written test, if necessary.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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